Detroit Bankruptcy Mediation, Part II

September 19, 2014 – 5:40 pm

I wrote in April about the mediation team being used to facilitate the Detroit bankruptcy. I was intrigued about how it would work, and impressed at the novelty of using mediators. I’m now realizing that these folks are not “mediators” in the normal sense of the word. As we read more about the active efforts of this team to fashion specific outcomes, it appears that they may not be “neutral,” and that they may not be promoting party self-determination, which is the first principle of ethics for mediators.

Last month, one of the City’s creditors, Syncora, accused two of the mediators, Judge Gerald Rosen and Eugene Driker, of bias in the way they “designed and later executed a transaction in furtherance of their own personal vision” of preserving DIA assets, and of favoring city pensioners, at the expense of other creditors like Syncora. Syncora Brief 8-14

One of the proofs cited by Syncora to support their argument that Gene Driker was biased was the fact that his wife was a long-time board member of the DIA. Syncora this week apologized for saying that Mr. Driker hadn’t disclosed his wife’s connection to the DIA, when it turns out he had. It also apologized for casting aspersions on Judge Rosen’s character. Syncora’s apology – issued in the face of an order to show cause why it shouldn’t be sanctioned for accusing the mediators of bias – is so flattering of the two mediators as to leave one puzzled, especially given that Syncora has now settled with the City and withdrawn its objections to the bankruptcy plan.

It doesn’t undo the fact that one of the bankruptcy “mediators” has close ties to the DIA, that arguably should have disqualified him from serving, or at least from working on any aspect of the “grand bargain.” These “mediators” perhaps should be called “special masters” or some other term that recognizes the scope of their power in this case.

 

By abfifer | Posted in Apologies, Learnings from Mediation | Comments Off on Detroit Bankruptcy Mediation, Part II

Mediation Results in Public Apology

September 18, 2014 – 10:53 am

While former Macomb County commissioner Phil DiMaria was running for a state house seat in 2012, an outfit called Main Street Strategies made robocalls to households in Eastpointe and St. Clair Shores, defaming DiMaria. After he lost the election, DiMaria sued Main Street Strategies and its head, Joseph DiSano. The case went to mediation earlier this year, and the results were reported in the Detroit Free Press this week.

The article says that the settlement specifies that DiSano is to issue a public apology in different formats, with DiMaria drafting the wording and Di Sano signing the apology letter. The settlement permits DiMaria to publish the apologies in local newspapers, with DiSano footing the bill. The article reported other provisions for the public apology:

“DiSano also is to dictate a robocall apology using his voice and ‘reasonable language’ drafted by DiMaria, according to the settlement. The robocall is to be paid for by DiSano and/or Main Street Strategies and must seek to duplicate as closely as possible the same households distribution used with the robocall that prompted the lawsuit.

“The settlement states that DiSano wants to personally apologize to DiMaria and his wife. DiMaria said all of the apologies are being finalized.

“DiSano also agrees to help DiMaria with a future political campaign, should DiMaria chose to run again. There will be free assistance within established parameters, which were outlined in the settlement. The apology may refer to this promise of future free assistance to lend credibility to the apology, according to the settlement.”

Phil DiMaria told the Free Press that Mr. DiSano was “very, very sorry for what occurred,” but never said why he did what he did.

Mediations often result in apologies, but they are not usually public. In this case, not only the apologies are public; other aspects of the settlement itself have been made public, through this newspaper article. Both Mr. DiMaria and his attorney gave statements to the Free Press, and Mr. DiMaria also felt free to disclose other aspects of the mediation that would typically be confidential, such as Mr. DiSano’s motivations for his behavior. A public wrong demands a public apology and, apparently, a public description of mediation outcomes.

By abfifer | Posted in Apologies | Comments Off on Mediation Results in Public Apology

Advice to Churches to Prevent Member Lawsuits

September 16, 2014 – 4:36 pm

Following up on my previous post, based on Doe v Vineyard Church, regarding church members who were able to sue their church despite signing a document promising that they would not, here are some suggestions for churches to prevent members from suing their church:

  • Have a Dispute Resolution Policy that specifically states that members will resolve their disputes through mediation and/or arbitration, and that they will not sue their church or other church members. A sample can be found on Peacemaker Ministries’ website.
  • Make it clear to members and to prospective members where they can find the Dispute Resolution Policy. If it’s a separate document, as Peacemaker Ministries recommends, make sure there are cross-references between it and the church’s by-laws. If it’s in a “newcomer’s booklet” or other information for prospective members, make sure it’s clearly identified, not buried.
  • As part of the membership class or other membership education process, specifically teach on the dispute resolution policy, the importance of resolving disputes within the body of Christ rather than in court, and the ramifications of waiving the right to sue one’s church. It is not sufficient to tell prospective members to read the policy on their own.
  • If the membership commitment form does not contain the dispute resolution policy itself, but only references it, be sure that the membership commitment form describes exactly where the policy can be found. Determine some way to verify that the prospective member has indeed read the policy. Consider including a line in the membership commitment like, “I have received a copy of the Dispute Resolution Policy, have had a chance to review it, and have had any questions about it answered.”
  • Maintain documentation of membership commitments.
  • Hang onto various versions of the dispute resolution policy, with dates indicating when each version was in effect.

The key feature that a court will look for is “informed consent.” Did new members consent to mediate or arbitrate all future disputes, and knowingly waive the right to sue their church? Did new members understand the implications of agreeing to med/arb and foregoing litigation? Referring in the membership commitment form to a dispute resolution policy, without describing it or where the policy itself can be found, is ineffective. Having the policy as an appendix in a booklet for newcomers, then simply telling prospective members to read it, is insufficient. Talking generally about the policy, without explaining its ramifications, is insufficient too. Thoughtful consideration to this topic will ensure that members want to resolve church disputes within the church, rather than in court.

By abfifer | Posted in Christian Lawsuits | Comments Off on Advice to Churches to Prevent Member Lawsuits

Enforcing Agreements Not to Sue Your Church

September 11, 2014 – 4:54 pm

For a host of reasons, it seems both unbiblical and un-Christian for a church member to sue one’s own church. (Indeed, I think this is an issue only in the U.S.—it simply would not occur to the vast majority of Christians in the world to express their unhappiness with their church by suing it.) But, just to be sure, many churches encourage members to agree to bring any disputes to mediation or arbitration, rather than to court, often as a condition of membership.

My own church, Berean Baptist Church, offers such an agreement to prospective members. In addition to signing a commitment to adhere to the church’s by-laws, prospective members are encouraged to sign a commitment not to sue the church, but to “submit the matter to mediation and, if necessary, to arbitration.”

A recent case tests the enforceability of such an agreement. A married couple joined a Vineyard church outside Columbus, Ohio, in 2006. The church requires its members to commit to Vineyard’s “disciplinary and dispute resolution process,” as part of its membership application. The couple signed this application, and attended the Newcomer’s class, both of which are required for membership. In the Newcomer’s class, potential members are given a booklet which includes the dispute resolution policy. The policy is similar to the standard clause promoted by Peacemaker Ministries, calling for all disputes between members and their church to be resolved through “biblically-based mediation and, if necessary, arbitration, in accordance with the Rules of Procedure of the Institute for Christian Conciliation.” The couple claims that they never received the booklet, nor was the dispute resolution policy addressed in their membership class.

The couple filed a lawsuit against the church in 2011, after the wife was sexually abused by an associate pastor who was counseling her. The church argued that the matter ought to be resolved privately rather than in court, based on the couple’s promise not to sue the church. The trial court rejected the church’s argument; the church appealed. This summer, Ohio’s Tenth District Court of Appeals ruled in favor of the couple, agreeing with the lower court that the evidence did not support the church’s claim that the family had agreed to the policy (Doe v Vineyard Columbus, 2014-Ohio-2617). Although the membership application included an agreement to the disciplinary and dispute resolution process, the court pointed out that the application did not include the policy itself, nor reference the Newcomer’s booklet where one could find the policy and read it before agreeing to become a member. Thus, the court could not find a knowing agreement to mediate or arbitrate disputes.

Churches shouldn’t have to work this hard to convince their members not to sue them. Whether or not this couple signed this form, or agreed sometime in the past not to sue their church, it’s contrary to everything that Christ’s church stands for, for members to be bringing lawsuits against their churches in the civil courts. Paul said as much in I Corinthians 6:1-8. In this case, the church isn’t disputing that the abuse occurred; the associate pastor was fired as soon as it came to light. This argument is only about the forum: should the dispute be resolved in court, or privately?

One wonders why the family is so reluctant to resolve this in a private Christian mediation or arbitration process. The matter could have been resolved long ago, had they gone straight to Christian ADR. Instead, they’ve now filed for bankruptcy, citing the wife’s high therapy bills. And, after three years of litigation, all they’ve accomplished is the right to go forward with their lawsuit. It could be months or years before they see the end of this. One wonders, too, what efforts the church has made to help this family out so they would have no reason to sue.

For all the churches–including my own–that have these clauses in their membership documents, this case is a cautionary tale: do members know and understand what it means to waive their right to sue their church? One of the challenges for this Vineyard church was finding a copy of the Newcomer’s booklet from 2006, when the plaintiffs joined the church. Churches need to educate members on these policies and their implications, make sure members understand them, and then hang onto them, “just in case.”

By abfifer | Posted in Christian Lawsuits | Comments (3)

Forgiveness Tested

August 29, 2014 – 12:34 pm

Forgiveness is hard work. Stories of forgiveness inspire me to keep working on “forgive one another.” Here’s one from a good friend, whose name I’ve changed to protect the other party.

Jane attended a small private college about 40 years ago. In her senior year, she became engaged to a young man who had graduated from that college and was an adjunct professor there. Shortly thereafter, Jane’s fiancé became concerned about some college policies and expressed his views to the administration; he was fired. Jane’s mother wrote a letter to the college president in defense of her future son-in-law; the president responded with harsh comments about her character, and declared that Jane was ineligible to graduate from the college. So, with just a few credits to go, Jane had to leave that college without a degree.

A committed follower of Jesus Christ, Jane knew she had to forgive the college president, and over the years, God gave her the grace to do that. Jane says it was in some ways harder to forgive the president for the hurtful comments made to her mother than for what he did to Jane herself. Jane married her fiancé, they moved out of state, and they have enjoyed a happy marriage and fruitful ministry.

But Jane’s forgiveness was tested last month: Jane happened to be flying out of the airport of the city where the college is located, and when she got to her gate, she spotted the college president and his wife waiting to board her plane. After a quick prayer, Jane approached the now-former president, identifying herself as a student who had enjoyed her years at the college. The ex-president and his wife were delighted to talk with her. Their flight got delayed, so the ex-president invited Jane to join them in the airline club, where they continued their pleasant conversation. They parted with hugs all around. Jane never mentioned the non-graduation/libel incident to him, and he evidently never made the connection, that this lady whose company he was enjoying was the one he had deprived of a diploma forty years before.

We can say that we have forgiven someone who hurt us in the past. We can truly believe that we have forgiven that person, especially if we never see them again. But if we do see them again, our decision is tested: did I truly forgive him? And perhaps the real test is when the new encounter is unexpected—Jane didn’t have time to work through the forgiveness process as she sat at the gate trying to decide whether to engage with the college president. She had already done the hard work—her heart was clear.

It would’ve been easy for Jane to have ignored the president—we can think of a million justifications. She says she knew the Holy Spirit was prompting her to engage with him and his wife, so she obeyed, however reluctantly—and she was blessed for her obedience.

There are times when it is right to gently confront the other person with their sin, and part of me wishes that Jane had confronted the ex-president with his foolish, vindictive decision to deny her the diploma she had earned. But the man is elderly now, his presidency long behind him. Correction now won’t help him be a better college president. And bringing up the painful incident could have spoiled the pleasant encounter.

Jane’s behavior humbles me in two ways: First, I’m awed by her ability to forgive this injustice. It was a mean abuse of power, and could have had life-long repercussions for her. Could I have forgiven this? Second, I’m impressed that she walked over to the ex-president in the airport terminal, and engaged him. I can well imagine myself deciding to forego the opportunity—he would never know, and if I’ve already forgiven him, why test it?

Peacemaker Ministries offers four promises that “test” whether we’ve really forgiven someone:

I will not dwell on this incident.
I will not bring up this incident again and use it against you.
I will not allow this incident to stand in the way of my relationship with you.
I will not speak to others about this incident.

My friend Jane passed the test! Could I? Could you?

By abfifer | Posted in Uncategorized | Comments Off on Forgiveness Tested